WSR 21-10-012
EMERGENCY RULES
SUPERINTENDENT OF
PUBLIC INSTRUCTION
[Filed April 23, 2021, 9:45 a.m., effective April 23, 2021, 9:45 a.m.]
Effective Date of Rule: Immediately upon filing.
Purpose: The purpose of this emergency rule amendment to chapter 392-380 WAC is to clarify the procedural and substantive due process requirements governing the exclusion of children from schools pursuant to RCW 28A.210.120 and 28A.210.320 for the 2020-21 school year.
Citation of Rules Affected by this Order: Amending chapter 392-380 WAC.
Statutory Authority for Adoption: RCW 28A.210.160 and 28A.210.320(3).
Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.
Reasons for this Finding: Recent rules adopted by the Washington state board of health that went into effect August 1, 2020, regarding school immunization requirements increase the possibility that students may be excluded from school due to noncompliance with these requirements at the start of the 2020-21 school year. This, coupled with the current lack of clarity in chapter 392-380 WAC regarding procedural and substantive due process safeguards for students who are excluded from school due to noncompliance with immunization requirements, create an urgent need to immediately amend chapter 392-380 WAC to preserve public health, safety, and the general welfare.
On October 7, 2020, the office of superintendent of public instruction initiated permanent rule making to amend chapter 392-380 WAC. The CR-102 was filed on April 7, 2021. The public hearing will be May 11, 2021, with comments due the same day.
Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.
Number of Sections Adopted at the Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.
Number of Sections Adopted on the Agency's own Initiative: New 0, Amended 4, Repealed 0.
Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.
Number of Sections Adopted using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.
Date Adopted: April 23, 2021.
Chris P. S. Reykdal
State Superintendent
of Public Instruction
OTS-2569.1
AMENDATORY SECTION(Amending WSR 07-12-020, filed 5/25/07, effective 6/25/07)
WAC 392-380-020Definitions.
The definitions in this section apply throughout this chapter unless the context clearly requires otherwise:
(1) "Student" shall mean the same as defined for "child" in RCW 28A.210.070(((6))).
(2) "Chief administrator" shall mean the same as defined in RCW 28A.210.070(((1))).
(3) "Full immunization" shall mean the same as defined in RCW 28A.210.070(((2))).
(4) "Schedule of immunization" shall mean the beginning or continuing of a course of immunization, including the conditions for school attendance when a child is not fully immunized, as prescribed by the state board of health (WAC ((246-100-166(5)))246-105-060(2)).
(5) "Certificate of exemption" shall mean the filing of a statement exempting the child from immunizations with the chief administrator of the school, on a form prescribed by the department of health, which complies with RCW 28A.210.090.
(6) "Life-threatening condition" shall mean a health condition that will put the child in danger of death during the school day if a medication or treatment order and a nursing plan are not in place.
(7) "Medication or treatment order" shall mean the authority a registered nurse obtains under RCW 18.79.260(2). The order shall be signed by a licensed health care practitioner listed under RCW 18.79.260(2).
(8) "Nursing plan" shall mean a plan of care developed for the student consistent with the standards of nursing conduct or practice set out in department of health regulations, WAC 246-840-700 et seq. The nursing plan implements the medication or treatment order.
(9) "Exclusion" shall mean the case or instance when the student is denied initial or continued attendance:
(a) Due to failure to:
(i) Submit a schedule of immunization((,)) or a certificate of exemption as prescribed in WAC 246-105-050; or
(ii) Maintain the conditions for conditional status attendance prescribed in WAC 246-105-060; or
(b) In the case of a life-threatening health condition, due to failure to submit a medication or treatment order and any medication or equipment identified in the order, unless the school district is required to provide the medication or equipment as a related service under federal law.
(10) "School day" shall mean the same as in RCW 28A.150.030 and shall be inclusive of school or district sponsored field trip experiences and extracurricular activities and summer school.
(11) "Parent" shall ((mean parent, legal guardian, or other adult in loco parentis))have the same meaning as in WAC 392-172A-01125.
AMENDATORY SECTION(Amending WSR 07-12-020, filed 5/25/07, effective 6/25/07)
WAC 392-380-045School attendance conditioned upon presentation of proofs.
(1) The initial attendance of every student at every public school in the state is conditioned upon proof of immunization as set forth in RCW 28A.210.080.
(2) The chief administrator of each public school shall prohibit the further presence at school of each student already in attendance and who has failed to provide proof of immunization in accordance with RCW 28A.210.080(1). Such exclusion shall be preceded by written notice as set forth in WAC 392-380-050. If written notice has not been provided, any exclusion shall be stayed until notice is received by ((a))the student's parent((, guardian or other adult in loco parentis)).
(3) The initial attendance of every student at every public school who has a life-threatening health condition is conditioned upon:
(a) Presentation by the parent of a medication or treatment order addressing any life-threatening health condition the child has that may require medical services to be performed at the school; and
(b) Formulation of a nursing plan to implement the order.
The parent shall also provide any medication or equipment identified in the medication or treatment order necessary to carry out the order, unless the school district is required to provide the medication or equipment as a related service under federal law.
(4) The chief administrator of each public school shall prohibit the further attendance of each student already in attendance for whom a medication or treatment order has not been provided if the child has a life-threatening health condition that may require medical services to be performed at the school. Any such exclusion shall be preceded by written notice as set forth in WAC 392-380-050. If written notice has not been provided, any exclusion shall be stayed until notice is received by a parent. The school shall continue to prohibit the child's presence until the school:
(a) Receives a medication or treatment order and any medication or equipment identified in the order necessary to carry out the order, unless the school district is required to provide such medication or equipment as a related service under federal law; and
(b) Has a nursing plan in place.
A new medication or treatment order must be submitted whenever there are changes in the medication or treatment needs of the child. The nursing plan shall be amended accordingly.
(5) Upon receipt of a medication or treatment order, the school shall develop a nursing plan.
(6) The requirements of this chapter shall be applied consistent with the requirements of section 504 of the Rehabilitation Act of 1973 and the Individuals with Disabilities Education Act (IDEA).
AMENDATORY SECTION(Amending WSR 07-12-020, filed 5/25/07, effective 6/25/07)
WAC 392-380-050Written notice prior to exclusions from school.
(((1) Schools must provide written notice to parents prior to excluding students from school for failure to comply with WAC 392-380-045.
(2) The written notice for public school students shall:
(a) Be delivered in person or by certified mail and provided to parents in their native language if feasible.
(b) Inform the appropriate parents of the applicable laws and implementing rules. In addition to notification of the applicable laws and regulations, a copy of the laws and regulations shall be included with the notice.
(c) In cases of exclusion due to lack of proof of immunization, provide information regarding immunization services that are available from or through the local health department and other public agencies.
(d) Order the student excluded from school and state that such order is effective immediately upon receipt of the notice.
(e) Describe the rights of the parents and student to a hearing, describe the hearing process, and explain that the exclusion continues until either the necessary proof of immunization, or medication or treatment plan is received, or until a hearing officer determines that the student is no longer excluded from school.))(1) Written notice. Before excluding a student from school for failure to comply with WAC 392-380-045, a school must provide written notice of the exclusion to the student's parents in person, by mail, or by email. The written notice must include:
(a) The school's decision to exclude the student from school, effective immediately upon the parents' receipt of the notice.
(b) The duration and conditions of the exclusion, including that the exclusion will continue until the school receives necessary proof of immunization in accordance with RCW 28A.210.080, a medication or treatment plan in accordance with RCW 28A.210.320, or until a chief administrator determines that the student is no longer excluded from school.
(c) Notice of the applicable laws, including a copy of the applicable laws.
(d) In cases of exclusion due to lack of proof of immunization in accordance with RCW 28A.210.080(1), information regarding immunization services that are available through the local health department and other public agencies.
(e) The student's and parents' right to a hearing to challenge the decision under WAC 392-380-080, including where and to whom the hearing must be requested and a description of the hearing process.
(2) Language assistance. The school must ensure the written notice is provided in a language the parents understand, which may require language assistance for parents with limited-English proficiency under Title VI of the Civil Rights Act of 1964 or parents with communication disabilities under Title II of the Americans with Disabilities Act.
AMENDATORY SECTION(Amending WSR 07-12-020, filed 5/25/07, effective 6/25/07)
WAC 392-380-080Prehearing and hearing process.
(((1) If a request for hearing is received by the school district, it shall schedule a hearing. The hearing must be scheduled within three school days of receiving the request. The hearing may be continued to a later date if the parent requests a longer period.
(2) The school district shall establish a hearing process consistent with the procedures set forth for disciplinary cases under chapter 392-400 WAC.))(1) Requesting a hearing. A student or the parent may request a hearing to the chief administrator orally or in writing.
(2) Notice. Within one school day after receiving the hearing request, unless otherwise agreed to by the parents, the chief administrator must provide the parents written notice in person, by mail, or by email of the time, date, and location of the hearing.
(3) Hearing. The school must hold a hearing within three school days from the date the school's chief administrator received the hearing request, unless otherwise agreed to by the parents. At the hearing, the chief administrator must provide the parents an opportunity to explain how their student is in compliance with school attendance requirements under WAC 392-380-045.
(4) Hearing decision. The chief administrator must deliver a written hearing decision to the parents in person, by certified mail, or by email within two school business days after the hearing. The written decision must include:
(a) The decision to affirm or reverse the exclusion;
(b) If the decision to exclude the student is affirmed, the duration and conditions of the exclusion, including that the exclusion will continue until the school receives necessary proof of immunization in accordance with WAC 392-380-045(1) or a medication or treatment plan in accordance with WAC 392-380-045(3); and
(c) In cases of exclusion due to lack of proof of immunization in accordance with RCW 28A.219.080(1), information regarding immunization services that are available through the local health department and other public agencies.
(5) Language assistance. The school must ensure the notice, hearing proceedings, and written hearing decision are in a language the parents understand, which may require language assistance for parents with limited-English proficiency under Title VI of the Civil Rights Act of 1964 or parents with communication disabilities under Title II of the Americans with Disabilities Act.